Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/02811/2019
hu/02808/2019
HU/02806/2019

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 November 2021
On 30 November 2021

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

EM
DM
MM
(ANONYMITY DIRECTION MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr A Pipe, Counsel, instructed by Bedfords Solicitors
For the Respondent: Ms A Everett, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant, EM, is a citizen of Albania. Her date of birth is 28 April 1986. DM and MM are her children and are dependent on her appeal. Their respective dates of birth are 4 December 2017 and 18 December 2014. I shall refer to EM as the Appellant.
2. The Appellant made an application on protection grounds based on her fear of returning to Albania as a gay, single mother without family support. The Secretary of State refused the application on 29 January 2019. The Appellant's appeal was dismissed by the First-tier Tribunal (Judge Elliott) in a decision promulgated on 22 June 2021 following a hearing on 20 April 2021. The Appellant was granted permission by First-tier Tribunal Judge Adio on 9 July 2021 to appeal against the decision of Judge Elliot.
3. The matter came before me on 11 November in order to determine whether Judge Elliott made an error of law.
4. The First-tier Tribunal made a number of positive findings in respect of the Appellant. The judge at [63] said that having considered the evidence in the round he considered that the Appellant is as she claims a lesbian. The judge said as follows in that paragraph:-
"... her account of ill-treatment at the hands of her family is consistent with the background evidence provided. The CPIN Albania: Sexual orientation and gender identity published in December 2019 indicates that Albanian society is conservative and that LGBTI people there continue to experience discrimination from individuals as well as institutions. Consequently public visibility of LGBTI individuals remains very low. Homophobic sentiments remain very high despite the government having introduced anti-discrimination legislation and that there is a pervasive culture of 'heteronormality' and patriarchy. The CPIN goes on to note that domestic violence against LGBTI people is common and that the most flagrant violence against LGBTI members occurs within the family, as a result much goes unreported".
5. The judge found that the Appellant gave consistent evidence that she was attacked by her brother with a knife and that her uncle hit her with a chair and broke her teeth. The judge found that she has injuries consistent with this account. The judge noted MK (Lesbians) Albania v Secretary of State for the Home Department CG [2009] 00036 where the Upper Tribunal decided that a lesbian woman in Albania whose sexual orientation becomes known, may be at risk of harm from members of her family, particularly if she is from a traditional family from the north of Albania.
6. The judge said that the Appellant's evidence was that some of her wider family members are imams and that her family are traditional and Muslim. She was born and raised in Lushnije in central Albania. The judge said that that fact alone does not detract from her account being consistent with the wider background evidence that families in Albania can and often do react with violence to what they perceive to be a serious transgression of societal norms that touch upon the honour of the family. The judge concluded as follows; "I find therefore, considering the evidence in the round, that the Appellant has demonstrated to the required standard that she is not only a lesbian, but one who has been subjected to domestic violence at the hands of her close family members" (see [64]).
7. The judge at paragraph 65 found that LGBT persons form a particular social group in Albania within the meaning of the Refugee Convention as they share a common characteristic that cannot be altered. The judge found that they are perceived as being different by wider Albanian society. However, the judge went on to state at paragraph 65 the following:-
"That does not mean, however that simply because I find that the Appellant is a member of that group that she is entitled to refugee status. The question is whether, in her particular case, she has demonstrated to the low level required in a protection appeal that she will face a real risk of persecution because of it. Women who are at risk of domestic abuse in Albania are not considered to form a particular social group (see DM (sufficiency of protection-PSG-women-domestic violence) Albania CG [2004] UKAIT 0059). The question therefore in respect of that aspect of her claim is whether the Appellant will face a real risk of serious harm as a result of domestic abuse such as would enable her to qualify for humanitarian protection".
8. The judge went on to consider the position of lesbian women in Albania, noting that MK is over a decade old. However, the judge said it remains guidance that he should follow unless there is a good reason not to do so. The Upper Tribunal had found in that case that it could not be said without more that there was a real risk of a woman without family support in Albania would suffer destitution amounting to a breach of Article 3 ECHR. The judge found that generally lesbian women in Albania are able to carry on discreet lesbian relationships without attracting a risk of serious harm. The judge said that although there is a risk should such a relationship become known to the Appellant's family in such a case it is likely that there would be adequate state protection and in any event it has to be determined whether she is likely to behave discreetly upon return (see [66]).
9. The judge at [67] said that the point must be considered in the light of the test set out in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31. The judge said that "how the Appellant will conduct herself and how others will react to what she does has to be considered and she cannot be expected to hide her sexual orientation if she is willing to do so".
10. The judge at [68] said that the fact that the Appellant might not be able to do everything in Albania that she could do openly here is not the test. The judge stated the following:-
"If the Appellant would in fact conceal aspects of her sexual orientation if returned to Albania, I must consider why she would choose to do that. If it is simply on account of social pressures or for a cultural or religious reason and not because of fear of persecution her asylum claim must be rejected. If the reason is that she would conceal her sexual orientation because she genuinely fears that she will be persecuted, I must then consider whether that fear is well-founded. Only then would she be entitled to asylum".
11. The judge considered whether the Appellant would live openly and freely at [69], and at [70] he stated as follows:-
"The Appellant says that she wishes to live a normal expressive life. However the reasons she advances for not being able to do so in Albania is not through fear of her family finding out about her sexuality (they already know about it) but because she and her children would face prejudice from society on account of her sexuality, because of her past, and because she is a single mother. Of course, she says, as I accept that her family have assaulted her and that her brother threatened to kill her, and so in that regard she has a genuine fear of coming to serious harm at the hands of her family".
12. The judge took into account the CPIN Albania: Sexual orientation and gender identity 2019 (CPIN 2019) and noted that the Albanian government had passed some of the most progressive LGBT laws in the region and that public officials have shown willingness and ability to pass reforms in partnership with LGBT activists. The judge noted that there was clearly further work to be done to raise awareness, however, the government adopted a national action plan between 2016 and 2020 to develop legislation, strategies and policies for improving LGBT inclusion in society. The judge noted that there were a few reported incidents of harassment of LGBT members by the police but not on such a sufficient scale to amount to persecution or serious harm. The judge noted that an independent commissioner for protection from discrimination has been appointed and the US State Department Report confirms that Albanian law prohibits discrimination based on sexual orientation including employment matters. The judge noted that there is a state-appointed ombudsman whose duties include promoting and enforcement of human rights including LGBT rights.
13. The judge took into account that according to the CPIN 2019 the police do not always enforce the law equitably but from 2014 onwards the police in Tirana have been undergoing training. The background evidence indicated that while outside the capital there is less information the general impression of police collaboration is positive. Although the judge noted reports about the experience of a lesbian activist who was harassed by police officers for no reason other than her sexuality and for the fact that her friend was transgender. The judge concluded that there was "no evidence that the police generally were either unable or unwilling to take action when crimes were reported". The judge found at [73] that although bullying and homophobic abuse was reported to still be a frequent occurrence there was evidence that the state is undertaking a programme of education to raise awareness about LGBT rights.
14. At [74] the judge found that although LGBT people in Albania still suffer discrimination from individuals and from some institutions there is little reliable data on the levels of hate crime seemingly because levels of reporting remained low. However, although this does not "make the situation right, ... it does not necessarily mean that the state is either unwilling or unable to protect people who are victims of hate crimes or discrimination".
15. From the CPIN 2019 the judge noted that LGBT organisations have held public events successfully since 2012 with the protection and co-operation of the police. At [76] the judge took into account background evidence submitted by the Appellant which presented "a much more mixed picture of progress in Albania". However, the judge noted that they were for the most parts from 2012 and 2013 and drew on other reports predating them. The judge noted the most recent report was an overview from Amnesty International in 2019 which concluded that most LGBT people continue to conceal their identity to avoid ostracism and discrimination. However, there was no reference to the ability of the state to provide protection.
16. The judge returned to DM where the Upper Tribunal held that sufficient protection was available in Albania from perpetrators of domestic abuse. The judge turned to the CPIN Albania: Domestic abuse and violence against women of December 2018 (CPIN 2018) which states that since the decision in DM a number of measures have been adopted by the state to improve the law relating to domestic abuse and to improve the provision of support for victims. The judge noted that the criminal law recognises domestic violence as a specific offence and has done since 2012 and the Council of Europe's Convention on preventing and combatting violence against women was adopted in 2014.
17. From the CPIN 2018 the judge said there were reported to be high levels of satisfaction in 2017 with the manner in which police responded to domestic abuse cases which is attributed to specialist units having been established at police stations and to the training having been given to police officers. The judge noted that the attitude and understanding of the police to gender based violence is noted to have improved greatly since DM was decided. The judge found that there had been increased government spending on shelters for victims and every person seeking shelter is given a mental health assessment with treatment being provided in the shelter or in a mental health centre. On leaving a shelter social housing can be provided if necessary with social welfare payments and free nursery places for single mothers with children. Single mothers returned to Albania are assisted in finding employment and are entitled to state benefits. Social housing and children are given priority in the school registration system, language lessons are available if necessary. The judge found that the background evidence is that it is easier for women to relocate to Tirana but the Albanian Constitution allows for free movement.
18. The judge said that although Tirana is about 30 minutes from Durres where the Appellant's family lived in 2012, Tirana is a city with a population of about half a million people. Durres itself has a population of a quarter of a million. The Appellant has confirmed that she had no contact with her family since she left in 2012. There is no evidence that they are actively seeking her or would have the means to locate her in the local population of Tirana.
19. The evidence from the Respondent was more up-to-date according to the judge and established that there is a state structure in place to protect women from perpetrators of domestic violence and a willingness on the part of the state to take action. The judge took into account that the Appellant did not report the assault by her brother and uncle to the police and she referred to the lack of interest in her condition from a security officer at the hospital to which she was taken. However, the judge found at [80] that there is no evidence that the police would not have been able or willing to assist her had she reported the assault to them. The judge concluded "I find, considering all the evidence, that there is sufficient protection available to the Appellant in respect of her sexual orientation and as a victim of domestic violence and that it would not be unreasonable for her to relocate to Tirana".
20. The judge found that the Appellant has no family support available to her and she is unable to return to her family because of the treatment she received at their hands and the threats they made to do her harm. He accepted that she would be returning to Albania as a single mother with children with no accommodation and the two young children have no knowledge of life in Albania. The judge took into account that the Appellant has mental health difficulties for which she receives treatment in the UK and emotional support from her friend D with whose family unit she claims she and her children have the closest bond. Added to these factors is the Appellant's sexual orientation which as found by the judge will further result in her being stigmatised and ostracised and her children being bullied and discriminated against.
21. The judge found that the background evidence supports a conclusion that it is likely that the Appellant will face some discrimination and stigma. The judge found that it is likely the Appellant's children will also face some stigma. The judge said at [84]:-
"The reports also speak about cultural attitudes, beliefs, patriarchal claims and the norms of society, However section 8 of the CPIN relating to domestic violence suggests that prejudice of this sort is less of an issue now than it was in the past and that there are no problems for people who want to reintegrate and work, the only thing that could hold people back would be medical issues (see paragraph 8.3.3). It is an unfortunate fact that even in more liberal societies, gay people continue to face prejudice and stigmatisation. To an extent therefore the Appellant could face such difficulties from elements of the community even in the UK".
22. At [85] the judge turned to the Appellant's mental health which he found "appears to be treated by way of medication". The judge took into account a letter from NHS Hertfordshire Partnership University dated 14 January 2021 which states that the Appellant was referred to them with symptoms of PTSD, anxiety and depression. The judge took into account that the Appellant has never had any suicidal thoughts and is medicated with Fluoxetine and Promethazine which she finds beneficial. The judge considered the CPIN: Albania: Mental healthcare published in May 2020 (CPIN 2020) and he said that the report indicates that albeit there are shortcomings there is a functioning public healthcare system in Albania. There are community based mental health outpatient facilities, psychiatric hospitals and residential care facilities. Treatment for mental health illness is available and treatment for psychiatric illnesses provided free of charge. The judge concluded that "were the Appellant to return to Tirana (and it is reasonable to assume she would), there is nothing to support that the Appellant would be unable to access and obtain appropriate care" (see [87]).
23. The judge concluded at [88] that the Appellant would not face very significant obstacles to integration into life in Albania. She would have sufficient understanding of life in society there and so as to have the capacity to participate in it. The judge took into account that the Appellant is an Albanian "by birth and upbringing". She speaks the language and was educated and lived there until she was aged 26. The judge found that she would be able to receive the medical treatment necessary and stated:-
"The Appellant fears stigma and ostracism, but given the background evidence referred to, that would not prevent her reintegration into life in Albania".
24. In considering Article 8 and proportionality the judge said that his starting point is the best interests of the Appellant's children. The judge said that the Appellant has raised her children alone albeit within D's household and the judge concluded that "it is clearly in their best interests that they remain with her whether that is in the United Kingdom or Albania". The judge took into account that neither of the children is a British citizen and neither has lived outside the United Kingdom. He took into account that they are not to blame for the position in which their mother finds herself, they are both in education, one in nursery and one in the early stages of schooling. The judge took into account that removal would necessitate the children accompanying her to a country which they have never visited. At [89] the judge concluded:-
"... however they are still young, their heritage both maternal and, according to the Appellant's accounts paternal, is Albanian. Education is provided freely in Albania and English is widely spoken. Albanian language classes are available and they would have the help and support of their mother. They would be brought up in their own culture. Considering all the evidence, I find that the best interests of the children in this case are to remain with their mother and that were she to be returned to Albania I find no reason to believe that they could not also return with her".
25. The judge took into account that the Appellant fails to meet the requirements of the Immigration Rules and when considering proportionality he had regard to the factors contained at Section 117B of the 2002 Act (see [92]). The judge took into account that the Appellant is currently financially independent of the state, however her immigration status is clearly precarious and that neither of the children is a qualifying child within the meaning of s.117(6) of the 2002 Act. The judge said that he has taken account of the fact that the Appellant and her children have a "close tie to [D] and her children, but the children are still very young and are more readily able to adapt to making and establishing new friendships". The judge found that there was no reason why D, given that she has supported the Appellant over the last eight years, could not continue to provide her with the emotional and financial support albeit at a distance. The judge went on to dismiss the appeal under Article 8.
The Grounds of Appeal
26. The grounds of appeal assert that the judge made a material misdirection of law at paragraph 68 where he states "if the reason is that she will conceal her sexual orientation because she genuinely fears that she will be persecuted, I must then consider whether that fear is well-founded. Only then will she be entitled to asylum". The judge has erred. In HJ (Iran) v Secretary of State for the Home Department Lord Rodger said:-
"62. Having examined the relevant evidence, the Secretary of State or the Tribunal may conclude, however, that the applicant would act discreetly partly to avoid upsetting his parents, partly to avoid trouble with his friends and colleagues, and partly due to a well-founded fear of being persecuted by the state authorities. In other words the need to avoid the threat of persecution would be a material reason, among a number of complementary reasons, why the applicant would act discreetly. Would the existence of these other reasons make a crucial difference? In my view it would not. A Jew would not lose the protection of the Convention because, in addition to suffering state persecution, he might also be subject to casual, social anti-Semitism. Similarly, a gay man who was not only persecuted by the state, but also made the butt of casual jokes at work, would not lose the protection of the Convention. It follows that the question can be further refined: is an applicant to be regarded as a refugee for the purposes of the Convention in circumstances where the reality is that, if he were returned to his country of nationality, in addition to other reasons for behaving discreetly, he would have to behave discreetly in order to avoid persecution because of being gay?"
27. The judge misdirected himself because a fear of persecution need not be the only reason for behaving discreetly.
28. The second ground is that the judge failed to consider material evidence. In the addendum skeleton argument (dated 15 April 2021) the following extract was reproduced at paragraph 19:-
"The ILGA - Europe Report 'Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People 2021' states:
ANNUAL REVIEW OF THE HUMAN RIGHTS SITUATION OF LESBIAN, GAY, BISEXUAL, TRANS, AND INTERSEX PEOPLE IN ALBANIA COVERING THE PERIOD OF JANUARY TO DECEMBER 2020
ALBANIA
ACCESS TO ADEQUATE FOOD
Between March - December, Aleanca LGBTI and Streha LGBTI supported 117 LGBTI people with 800 food packages. Aleanca's study on the impact of COVID-19 on LGBTI people found that one in every four LGBTI respondents struggled to cover their basic needs, such as food, medication, clothes and shelter, without their family's support.
ASYLUM
Streha's study found that 80% of 200 LGBTI respondents had considered leaving Albania because they faced difficulties as an LGBTI person.
BIAS-MOTIVATED SPEECH
In June, Kujtim Gjuzi, MP and head of the Conservative Party, a small opposition party, criticised Prime Minister Edi Rama on TV saying: 'Rama likes to eat men's head scarves. I did not know he was a supporter of the LGBTI group.'
Pro-LGBT's study found that there was no representative of any minorities, including LGBTI people on prime TV in Albania. The study also found that 3% of online articles featured discriminatory or hateful speech about LGBTI people, mostly in the comments section
BIAS MOTIVATED VIOLENCE
The number of discrimination and violence cases significantly increased since the onset of the COVID-19 pandemic. Many had to move back or stay with their families, and were exposed to harassment and violence.
Aleanca's survey [to be published], which gathered 276 responses from LGBTI people, found one in two have experienced psychological violence and bullying and one in five have been sexually harassed. The survey documented 33 cases of physical violence and 16 cases of rape. 25 people have been blackmailed because of their sexual orientation or gender identity and 16 fired from their jobs. A mere 7% reported the incidents to the authorities.
In June, LGBTI activist Xheni Karaj was physically attacked while on a beach with her partner. The perpetrator was a doctor who said he should have left 'people like you' to die when he had the chance in hospital. Xheni reported the crime to the police. The Prosecutor's Office response was that there was no ground of hate crime and the case was closed."
https://www.ilga-europe.org/sites/default/files/2021/full_annual_review. pdf
29. The judge has not engaged with this evidence which was material both to the protection claim and to the private life claim pursuant to paragraphs 276ADE(1)(vi).
30. The third ground is that the judge failed to consider material matters. Again, it is asserted that the judge failed to consider material referred to in the addendum skeleton at [24] which is an extract from the CPIN 2020. The following was cited from that document:
"5.1.4 The United Kingdom States Department of State's Country Report on Human Rights Practices for 2019 stated: 'Persons with mental and other disabilities were subject to societal discrimination and stigmatization.'
5.1.5 The BDA/MedCOI report, published in July 2017, stated: 'According to the ADRF [Albanian Disability Rights Foundation], people with mental health disabilities are the most discriminated group in Albanian society. They approximately make up 50% of all disabled people.[...] The stigma associated with mental illnesses and disabilities is still an important issue in Albanian society, although things have improved slightly compared to attitudes in the past."
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/886754/ALB_-_Mental_Health_-_CPIN_-_V1.0_ May_2020.pdf
31. The grounds assert that the extract demonstrates that the Appellant would suffer discrimination and stigmatisation in relation to her mental health in addition to her sexuality. However, the judge at [85] states the opposite "Mentally ill people have been positively discriminated against so they can access mental health services and treatment".
32. The fourth ground is that the judge made a material misdirection of law/failed to consider material matters. The Appellant's case was that she and her children had established family life with D and her children. The Appellant has lived with D since March 2013 and her children have lived with D's family all their lives. Reliance was placed on Lama (video recorded evidence - weight - Art 8 ECHR: Nepal [2017] UKUT 16 to show that 'family life' does not require a blood relationship. As the judge did not make a finding as to whether family life was engaged in this case, this is an error and the omission is material to proportionality.

Conclusions
33. As observed by UTJ Smith, there is no direction limiting the grounds of appeal. In the light of EH (PTA: limited grounds; Cart JR) Bangladesh [2021] UKUT 117, with the consent of the parties, I allowed Mr Pipe to argue all grounds. I heard submissions from both Ms Everett and Mr Pipe. Mr Pipe relied on his grounds. Ms Everett submitted that there was no error of law.

Ground 1

34. The judge found that the Appellant is at risk from family members in her home area on account of her sexuality, but that she would be able to safely relocate to Tirana where there is adequate state protection. The judge's reasons for finding that the Appellant would not live openly as a gay person are recorded at [70]; " because she and her children would face prejudice from society on account of her sexuality, because of her past, and because she is a single mother." The judge accepted that the Appellant has a genuine fear from her family, but they already know of her sexuality and that was not a reason for her choosing on relocation to live discreetly. While the judge may have made a misdirection in so far as fear of persecution does not have to be the sole reason to live discreetly, the evidence from the Appellant did not disclose that persecution was a reason (amongst others) for living discreetly. I was not taken to any evidence on this issue that it is alleged the judge did not take account of. There is no material error arising from the application of HJ (Iran).
Ground 2
35. The document which the Mr Pipe argues was not taken into account by the Judge is set out above. I cannot in the judge's decision find a direct reference to it. I accept that from what the judge stated at [76] there is a possibility that the document was overlooked.

36. The document relates to the situation during Covid- 19. It indicates that it may have worsened for LGBTI. It is hardly surprising that gay people in Albania wish to leave. However, it is unarguable that the evidence supports that all LGBTI persons are at risk of persecution/serious harm. What is supports is that discrimination and hostility worsened during that pandemic particularly because many LGBTI people had to return to the family home.

37. The significance of the evidence is limited in this appeal because the judge was satisfied that there is discrimination and stigma towards gay people (see [74]) and he recognised that "bullying and homophobic abuse was reported to still be a frequent occurrence" ( see [73]). Moreover, the judge did not expect the Appellant to return to the family home where she would be at risk. The appeal was dismissed on the basis that the Appellant would live discreetly on relocation to Tirana where there are government shelters for victims of domestic violence (see [78]). I do not consider that the evidence which establishes additional difficulties faced by LGBTI persons during the pandemic, is material to any of the issues in this case. Had the judge had regard to it, it would have made no difference to the outcome.
Ground 3
38. The Appellant has mental health problems. There is no challenge to the finding of the judge that the Appellant would have access to treatment. The judge considered the issue in the light of the CPIN May 2020 (see [85] and [86]), contrary to what is asserted in the grounds. The grounds cite extracts from this CPIN to support that the Appellant would suffer discrimination and stigma, matters which, according to the grounds, the judge disregarded.

39. While the judge made no specific reference to the paragraphs of the CPIN cited in the grounds, this is not material. I have taken into account the final sentence of [85] to which Mr Pipe drew to my attention. Much was made of this sentence at the hearing before me. However, although the source of this was not identified by either of the parties at the hearing, I note that it was taken from the CPIN May 2020 - the source being a HO FFM report published in February 2018 (see 2.8 and 2.81). The judge was entitled to take this evidence into account.

40. In terms of availability of and access to treatment the evidence of stigma is not material to the assessment in the light of the evidence in the CPIN. In respect of Article 8, the judge took into account stigma and discrimination and lawfully concluded that it would not prevent re-integration. Ground 3 does not identify an error of law.
Ground 4
41. The judge at [92] considered the Appellant's children's relationship with D and her children, accepting that there were close ties. While there is no express finding by the judge that there was family life between D (and her children and the Appellant (and her children), the judge accepted that Article 8 (1) was engaged (see [90]) and went on to consider proportionality taking into account the relationships. While there is no express reason given at [90] why Article 8 is engaged, it can be reasonably inferred that at least part of the reason is the family's relationship with D. The judge was aware that the Appellant had lived with D since March 2013 and her children have lived with D's family all their lives. There is no challenge to the best interests assessment (at [89]). The judge found that it is in the children's best interests to remain with their sole parent, the Appellant. The judge took into account all material evidence and reached a conclusion that was open to him.

42. There is no material error properly identified in the grounds of appeal. The decision of the judge to dismiss the Appellant's appeal on all grounds is maintained.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Joanna McWilliam Date 17 November 2021

Upper Tribunal Judge McWilliam